Sexton v. Bobby Ross Group

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 14, 2000
• Docket: 99-11337
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-11337 Conference Calendar

SAMMIE LEE SEXTON,

Plaintiff-Appellant,

versus

BOBBY ROSS GROUP, Dickens County Correctional Center; COBY TRUHLICKA,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 5:99-CV-227-C - - - - - - - - - - June 13, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Sammie Lee Sexton, Texas prisoner # 783335, appeals from the

dismissal with prejudice of his civil-rights lawsuit, filed

pursuant to 42 U.S.C. § 1983, alleging that the defendants caused

the loss of his gold necklace. The district court dismissed his

lawsuit pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) as

frivolous and for failure to state a claim upon which relief may

be granted. A dismissal under § 1915(e)(2)(B)(i) is reviewed for

abuse of discretion, and a dismissal under § 1915(e)(2)(B)(ii) is

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-11337 -2-

reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275

(5th Cir. 1998).

Sexton’s claims are not cognizable under § 1983. See

McGruder v. Will, 204 F.3d 220, 222 (5th Cir. 2000)(misconduct of

state officials is not actionable under § 1983 in Texas because

adequate state post-deprivation remedies exist); Murphy v.

Collins, 26 F.3d 541, 543-44 (5th Cir. 1994)(same). The district

court’s dismissal was therefore proper.

Sexton’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. 5TH CIR.

R. 42.2. The dismissal of this appeal as frivolous counts as a

“strike” for purposes of 28 U.S.C. § 1915(g), as does the

district court’s dismissal. See Adepegba v. Hammons, 103 F.3d

383, 385-87 (5th Cir. 1996). We warn Sexton that if he

accumulates one more “strike” under § 1915(g), he will not be

able to proceed in forma pauperis in any civil action or appeal

filed while he is incarcerated or detained in any facility unless

he is under imminent danger of serious physical injury. See

§ 1915(g).

APPEAL DISMISSED.